Falls Creek Alpine Resort Management Board v Falls Creek Ski Lifts Pty Ltd
[2000] VSCA 30
•9 March 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.4689 of 1999
| FALLS CREEK ALPINE RESORT MANAGEMENT BOARD |
| Appellant (Defendant) |
| v |
| FALLS CREEK SKI LIFTS PTY. LTD. |
| Respondent (Third Party) |
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JUDGES: | PHILLIPS, CHARLES and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 March, 2000 | |
DATE OF JUDGMENT: | 9 March, 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 30 | |
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Contract - Lease - Construction - Lessee's covenant to indemnify lessor against liability - Lessee's covenant to insure against lessor's liability - Insurance to be in both names - Meaning and effect
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr A.G. Uren QC | Maddock Lonie & Chisholm |
| For the Respondent | Mr J.E. Middleton QC with Mr P.B. Jens | Middletons Moore & Bevins |
PHILLIPS, J.A.:
This is the second of two appeals that were heard together. The other was Buller Ski Lifts Ltd v. Mt Buller Alpine Resort Management Board in which judgment has just been delivered. In giving judgment, I explained why the two appeals were heard together and said that it was convenient nonetheless to give judgment separately. Where cross-reference is necessary I shall refer to the other appeal as the "Mt Buller appeal". Also, as mentioned in that judgment, although the Falls Creek Alpine Resort Management Board now appears as the appellant on this appeal, the matters giving rise to the appeal concerned the predecessor of the Management Board, the Alpine Resorts Commission, and in what follows I shall largely ignore the change.
This proceeding arises out of a skiing accident on 2 September 1995 when the plaintiff, one Sheila Margaret Trivett, was skiing down "Broadway" at Falls Creek towards the resort village, at about 1.30 p.m. About halfway down the run, there is an intersection of trails where, according to the plaintiff, there was no signage to warn skiers of the intersection. According to the findings made at trial, there was a collision at the intersection between the plaintiff and an unidentified male skier, by reason of which the plaintiff sustained significant personal injury. The plaintiff commenced a proceeding in the County Court against the Alpine Resorts Commission claiming damages for its negligence. The Commission joined the present respondent, Falls Creek Ski Lifts Pty Ltd, as third party. At the time of the accident, the Commission was the one responsible for the administration, control and management generally of alpine resorts in pursuance of s.24 of the Alpine Resorts Act 1983, as it then stood. The third party was operating ski lifts on land leased from the Commission and carried out on the demised land a number of other activities. It seems to have been common ground in this proceeding that the accident in question which occasioned the plaintiff's injuries occurred on the demised land.
The proceeding came on for trial before judge alone and on 31 October 1997, in comprehensive reasons for judgment, the trial judge found for the plaintiff against the defendant. Judgment was given accordingly for $55,092 with costs. The judge found that the Commission had been negligent in failing to provide adequate signage, barricades and markers at the intersection which was a cause of the plaintiff's accident.
The defendant's claim against the third party was determined separately on written submissions supplied by the parties in accordance with directions given on 30 June 1998. The Commission, as defendant, made three substantive claims against the third party: that the third party too had been negligent and was liable accordingly under s.23B of the Wrongs Act 1958 for contribution as between joint tortfeasors; that the third party was occupier of the premises upon which the collision occurred and therefore was liable as such under s.14B of the Wrongs Act and bound to contribute accordingly under s.23B; and, thirdly, that the third party was liable under the provisions of the lease between the defendant (as lessor) and the third party (as lessee). In reasons for judgment delivered on 1 March 1999, all three claims were rejected by the learned judge who gave judgment accordingly on 9 March for the third party, with costs.
As for the two claims under the Wrongs Act, the defendant relied upon alleged deficiencies in the design and construction of the ski runs in order to demonstrate liability in the third party. There was no evidence to support the allegations made and on that account they were rejected by the trial judge, and there is no appeal over that. As for the lease, the defendant relied upon clause 7.1 and also upon clauses 8.2.3, 8.2.4 and 8.2.5 to support a claim that the third party was liable to indemnify the defendant against the latter's liability to the plaintiff.
I have set out clause 8.2 in extenso in the judgment just delivered in the Mt Buller appeal, and so I shall not repeat it here. It was in the same form in the lease in this case, save for paragraph 8.2.5 which in this instance read as follows:
"8.2.5loss, damage or injury from any cause whatsoever to property or person caused or contributed to by the use of the Lessee's surface or aerial ski lifts and the Lessee's development, maintenance or management of skiing terrain on the demised land by any member of the public whether or not such person has authority or permission to be on the demised land;"
Clause 8.2.3 was held not to apply "because there has been no fault by the third party and thus no injuries have been caused by the use of the demised land by the third party". The claim under clause 8.2.4, was rejected on the basis that any injury, loss or damage was not "occasioned or contributed to by any act, omission, neglect, breach or default of the Lessee". As for clause 8.2.5, this refers to injury, loss and damage "caused or contributed to by the use of the Lessee's surface or aerial ski lifts and the Lessee's development, maintenance and management of the skiing terrain on the demised land". No ski lift was involved in the accident and there was no evidence, according to the trial judge, to enable the inference to be drawn that development, maintenance or management of the skiing terrain on the demised land by the third party was a cause of the injury, loss and damage suffered by the plaintiff. On that basis, the judge found that the indemnity provided by clause 8.2 was not called into play and again, there is no appeal over that.
As in the Mt Buller appeal, the appellant is appealing in relation only to the claim made by the Commission in reliance upon clause 7.1 of the lease. Although similar to the clause in the lease considered in the other appeal, there are some differences in the wording and so I must set out clause 7.1 again, in full:
"7.1Without in any way limiting the liability of the Lessee under Subclause 8.2 of Clause 8 of this Lease the Lessee shall forthwith take out a separate and distinct policy of public liability insurance and thereafter during the continuance of this Lease keep such policy on foot in the name of the Lessor its employees, servants and agents and the Lessee
(in the amount of not less ten million dollars ($10,000,000) for any one accident arising out of or in any way connected with the uses carried out on the demised land including, without limitation, the supply of ski lifts and alpine skiing terrain on the demised land which minimum amount may be reviewed by the Lessor from time to time during the continuance of this Lease and may be increased as shall be determined by the Lessor having regard to all facts, matters and things relevant in the opinion of the Lessor to the sufficiency of the amount)
whereby the Lessor its employees, servants and agents shall during the continuance of this Lease be indemnified against all actions, suits, claims, demands, proceedings, losses, damages, compensation, costs, charges and expenses mentioned or referred to in Sub-clause 8.2 of the Clause 8 of this Lease to which the Lessor its employees, servants and agents shall or may be liable
PROVIDED ALWAYS that any amount specified by the Lessor shall be the amount considered by the Lessor to be the minimum amount of public liability insurance that should be held by the Lessee and nothing in this Lease contained or implied will be taken as to restrict the Lessee from taking out a greater amount of public liability insurance should the Lessee consider such desirable."
Again, in setting out clause 7.1 I have indented the parenthetical statement and the proviso in order to highlight what, in my opinion, are the more important parts of the clause. It will be noticed, too, that in the parenthetical statement the pecuniary limit "for any one accident" is here $10 million (instead of $20 million in the Mt Buller appeal) and the expression "for any one accident" is qualified by these words that follow immediately -
"arising out of or in any way connected with the uses carried out on the demised land including, without limitation, the supply of ski lifts and alpine skiing terrain on the demised land".
On this appeal, the Commission's successor was the appellant (it being dissatisfied with the trial judge's rejection of its claim against the respondent under clause 7.1), but its counsel put the same argument concerning the proper construction of clause 7.1 as he put on behalf of the respondent in the Mt. Buller appeal. The principal submission was that clause 7.1 required the lessee to obtain insurance having two aspects not one, the first flowing from the description of the policy as one of "public liability insurance" which was to be kept in the name of both lessor and lessee and providing cover to the pecuniary limit "for any one accident arising out of or in any way connected with the uses carried out on the demised land". The appearance of these extra words in clause 7.1 was said to lend further force to the argument that there were two aspects of the insurance, the first described as I have just mentioned and the second described by the words commencing "whereby" in the second part of the clause. But the answer I give is the same as I gave in the other appeal: notwithstanding the appearance of further words in the parenthetical statement, I still regard the parenthetical statement as no more than that - as a pecuniary limit placed upon the claim "for any one accident" (howsoever described) and I still see the description of the cover to be provided by the policy as found principally within the words commencing "whereby" and by reference to the liability of the lessor as described in clause 8.2.
I have looked again at the wording of clause 7.1 and clause 8.2 and considered the context of these clauses lest I am too influenced by the decision already reached in relation to the Mt Buller appeal, but I find no reason in the differences in wording to depart from the construction placed there on clause 7.1. In short, I do not see the additional words in clause 7.1 or the different wording of clause 8.2 (in part) as dictating a different construction of clause 7.1. It matters not, to my mind, if the additional words in clause 7.1 go beyond what might otherwise be found in the description of the cover to be provided in the words commencing "whereby"; for their purpose is altogether different. They are there to describe the "one accident" to which the pecuniary limit attaches and, as I explained in the other judgment, it is a sensible provision, given that more than one paragraph of clause 8.2 might be attracted in a particular case.
There is no need I think to rehearse again the arguments put by Mr Uren about the construction of clause 7.1. For the reasons I gave in the judgment just delivered, I think the construction of clause 7.1 is such as to require a policy of insurance to indemnify the lessor in relation to the liability mentioned or referred to in clause 8.2, and as therein described. In this case, the trial judge found that clause 8.2 had no application, as I have already mentioned; and therefore the policy of public liability insurance required of the lessee under clause 7.1 cannot have availed the lessor in relation to its liability to the plaintiff. It follows that in my view the trial judge properly rejected the claim by the appellant against the respondent ski tow company.
That is not to say that I necessarily endorse all that was said in the reasons for judgment below. His Honour dealt quite shortly with the claim under clause 7.1 and concluded as follows: -
"On consideration of the incorporation by reference to the matters referred to in clause 8.2, as I have found there is no liability incurred by the Third Party under clause 8.2, this clause [clause 7.1] is not applicable.".
The reference to "liability incurred by the third party under clause 8.2" is perhaps ambiguous. It is unexceptionable, I think, if it refers to a liability in the lessee to indemnify the lessor under clause 8.2. It might be otherwise if it suggests that the cover to be provided under clause 7.1 is not attracted unless the lessee itself incurs some liability to a third party (that is, other than the lessor) by reason of some action or inaction on its part as described in one or other of the paragraphs of clause 8.2. That may or may not be so, but that point need not now be explored.
As in the other appeal, so here: Mr Uren made it plain that the appellant was not seeking nominal damages for any breach that occurred of clause 7.1. Accordingly for the reasons I have given I would simply dismiss this appeal.
CHARLES, J.A.:
I agree.
BATT, J.A.:
I too agree.
PHILLIPS, J.A.:
The orders made by the court in this appeal, being proceeding No. 4689 of 1999, are as follows:
1.That the notice of appeal be amended by substituting in the title for the name "Alpine Resorts Commission" the name "Falls Creek Alpine Resort Management Board" in accordance with the order made by Master Cain on 29 April 1999;
2. That the appeal be dismissed with costs.
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